Wultz v. Bank of China, Ltd.

                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
SHERYL WULTZ, YEKUTIEL WULTZ, )
AMANDA WULTZ, and                   )
A.L.W., a minor,                    )
                                    )
                  Plaintiffs,       )
                                    )
      v.                            )   Miscellaneous No. 13-1282 (RBW)
                                    )
BANK OF CHINA, LTD,                 )
                                    )
                  Defendant,        )
____________________________________)
                                    )
RIVKA MARTHA MORIAH, et al.,        )
                                    )
                  Intervenors,      )
____________________________________)
                                    )
THE STATE OF ISRAEL,                )
                                    )
                  Movant.           )
___________________________________ )

                                 MEMORANDUM OPINION

       On November 15, 2013, the State of Israel (“Israel”) filed a motion with this Court to

quash the third party deposition subpoena issued to former Israeli national security officer Uzi

Shaya in connection with litigation pending in the United States District Court for the Southern

District of New York (“Israel’s Mot.”). Both the plaintiffs in the above captioned matter and the

intervenors oppose Israel’s motion. Respondents’ Memorandum of Law in Opposition to

Petitioner’s Motion to Quash, ECF No. 18; Intervenor-Plaintiffs’ Memorandum of Law in

Opposition to Non-Party State of Israel’s Motion to Quash Subpoena, ECF No. 21. On

December 2, 2013, the intervenors filed their Motion of Intervenor-Plaintiffs to Strike Non-Party

State of Israel’s Motion to Quash on the Ground that the State of Israel has not Moved to


                                                 1
Intervene in This Case, and in the Alternative[,] to Transfer This Proceeding to the Southern

District of New York (“Intervenors’ Mot.”). Israel opposes the Intervenors’ motion. After

carefully considering the parties’ submissions, 1 the Court concludes that it must deny in part and

grant in part the intervenors’ motion, and for the following reasons, Israel’s motion to quash and

all related filings, which includes the component of the intervenors’ motion that seeks to have

Israel’s motion to quash stricken, are transferred to the Southern District of New York.

                                             I. BACKGROUND

A. The New York Litigation 2

        In 2009, the plaintiffs filed a lawsuit in this district against the Bank of China, Ltd.

(“Bank”) seeking to establish the Bank’s liability for the 2006 terrorist attack in Tel Aviv, Israel

that resulted in the death of sixteen-year-old American citizen Daniel Wultz. Israel’s Mem. at 2–

3. Another member of this Court transferred the plaintiffs’ lawsuit to the Southern District of

New York after finding that this Court did not have jurisdiction over the Bank. Id. at 2–3. The




1
  In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the Memorandum of Law in Support of the State of Israel’s Motion to Quash (“Israel’s Mem.”); (2) the
intervenors’ Supplemental Memorandum of Law in Support of Motion to Strike Non-Party State of Israel’s Motion
to Quash on the Ground that the State of Israel has not Moved to Intervene in this Case, or in the Alternative to
Transfer this Proceeding to the Southern District of New York (“Intervenors’ Supp. Mem.”); (3) the November 15,
2013 Order of Judge Shira Scheindlin in Wultz v. Bank of China Ltd., No. 11-cv-1266 (SAS) (S.D.N.Y.), ECF No.
394 (“Judge Scheindlin’s Order”); (4) the State of Israel’s Memorandum of Law in Opposition to the Intervenors’
Motion to Strike or Transfer (“Israel’s Opp’n”); (5) the Reply in Support of Intervenor-Plaintiffs’ Motion to Strike
Non-Party State of Israel’s Motion to Quash or, in the Alternative, to Transfer this Proceeding to the Southern
District of New York (“Intervenors’ Reply”); (6) the September 27, 2013 Letter of Judge Scheindlin to the Israeli
Department of International Affairs, Wultz v. Bank of China Ltd., No. 11-cv-1266 (SAS) (S.D.N.Y.), ECF No. 337
(“Judge Scheindlin’s Letter”); and (7) the December 4, 2013 Letter from attorney John B. Bellinger III titled
“Notices of Deposition of Yaacov Amidror and Matan Vilnai,” Intervenors’ Supp. Mem., Exhibit (“Ex.”) A
(“Bellinger Letter”).
2
  The Court refers to the above-captioned case and the intervenors’ five pending cases collectively as “the New York
litigation.” See Intervenors’ Mot. at 3 n.1.



                                                         2
case was then assigned to Judge Shira Scheindlin of the Southern District of New York, and she

is currently presiding over that litigation. Intervenors’ Mot. at 3 n.1. 3

         Similar terrorist attacks have resulted in the death or injury of other United States and

Israeli citizens (“Intervenors”). Id. at 3. Consequently, five other lawsuits have been brought

against the Bank alleging that the Bank “allowed and facilitated transfers of funds to the

[responsible] terrorist organizations,” id. at 3–4, and those cases are also currently being litigated

in the Southern District of New York or the New York Supreme Court (“intervenors’ lawsuits”),

see id. at 3 n.1. One of these five lawsuits, Moriah v. Bank of China, 12-cv-1594 (SAS)

(S.D.N.Y.), is also being litigated before Judge Scheindlin. Id. “[T]here is a discovery

coordination order in effect which provides that discovery shall be coordinated between [the two

cases pending before Judge Scheindlin] and all discovery generated in Wultz is usable in

Moriah.” Id.

B. The Instant Action

         On September 18, 2013, former Israeli national security officer Uzi Shaya was personally

served with a nonparty subpoena by process server Ted Metzger while he was in the District of

Columbia. Id. at 4; Israel’s Mem. at 3; Israel’s Mem., Exhibit (“Ex.”) A (Subpoena). The

subpoena commanded Mr. Shaya to appear at a deposition to be held at 5301 Wisconsin Avenue,

Suite 800, Washington, D.C., on November 25, 2013, in connection with the Wultz litigation.

Israel’s Mem., Ex. A (Subpoena). The intervenors contend that “by agreement with Mr. Shaya,

the location of the deposition was moved to New York, and Judge Scheindlin agreed that the

deposition could be conducted in her courtroom and that she herself would preside over the

deposition.” Intervenors’ Mot. at 4. On November 15, 2013, Judge Scheindlin entered an order

3
 For ease of reference, the Court will use the page numbers assigned to this filing by the Court’s Electronic Case
Filing System instead of the page numbers designated on the filing, because they appear to be incorrect.


                                                          3
specifying that “[t]he Court is scheduled to supervise Uzi Shaya’s deposition on November 25,

2013,” Order at 1, Wultz v. Bank of China, Ltd., No. 11-cv-1266 (SAS) (S.D.N.Y. Nov. 15,

2013), ECF No. 394, and set forth the rules that would govern that deposition, id. at 1–4. In

anticipation of the deposition, Judge Scheindlin contacted the State of Israel’s Department of

International Affairs to inform it of the upcoming deposition and to ascertain the State of Israel’s

position on Mr. Shaya’s participation. Judge Scheindlin’s Letter, Wultz v. Bank of China, Ltd.,

No. 11-cv-1266 (SAS) (S.D.N.Y. Sept. 27, 2013), ECF No. 337.

       On November 4, 2013, the intervenors filed a motion in this Court requesting that they be

“[p]ermitt[ed] . . . to intervene in [the above-captioned miscellaneous] case regarding the

enforcement and other matters related to the subpoena served . . . on Uzi Shaya.” Proposed

Intervenors’ Motion to Intervene at 8, No. 13-mc-1248 (RBW) (D.D.C. Nov. 4, 2013), ECF No.

1. On November 15, 2013, Israel, which is not a party to the New York litigation or the

intervenors’ lawsuits, filed its motion with this Court to quash the subpoena served on Mr.

Shaya. Israel’s Mot. at 1. On November 19, 2013, unaware of Judge Scheindlin’s previously-

entered orders pertaining to Mr. Shaya’s deposition, this Court entered an Order staying the

deposition pending the resolution of Israel’s motion to quash, instituting a briefing schedule, and

ordering that a motions hearing be convened on January 15, 2014, to resolve the motion to

quash. Order, ECF No. 5. On November 26, 2013, after the plaintiffs and Israel consented, the

Court granted the intervenors’ motion to intervene and consolidated the cases. Minute Order,

Nov. 26, 2013.

       On December 2, 2013, after changes to the Federal Rules of Civil Procedure became

effective, the intervenors filed their motion to strike or transfer. Intervenors’ Mot. at 1–2. Israel




                                                  4
opposed the intervenors’ motion as to all relief requested. The Court then stayed the January 15,

2014 hearing pending resolution of the intervenors’ motion.

                                     II. LEGAL ANALYSIS

       The intervenors request that this Court either strike Israel’s motion to quash, Intervenors’

Mot. at 1, or alternatively “transfer[] this proceeding, including the question of whether the

motion to quash should be stricken, to Judge Shira Scheindlin of the United States District Court

for the Southern District of New York, where the underlying action is pending,” id. at 2.

Because striking Israel’s motion would have the same impact on Mr. Shaya’s deposition as

would denying Israel’s motion, for the reasons discussed in this Opinion, the Court concludes

that resolution of these requests should be addressed by Judge Scheindlin. In deciding which

court should resolve these requests, the only issue addressed in this Opinion is the merits of the

intervenors’ request that this Court transfer Israel’s motion to quash to the Southern District of

New York for resolution.

   A. Local Rule 7(m)

       Israel first argues that the Court should not even address the merits of the intervenors’

motion to strike or transfer, but instead “should deny [the i]ntervenors’ motion in its entirety

because [the i]ntervenors did not confer with counsel for the State of Israel about the relief

requested before filing the motion,” as is required by Local Civil Rule 7(m). Israel’s Opp’n at 1.

However, Israel concedes that its counsel received an email from the intervenors’ counsel

indicating that “he would oppose any future motion to quash” on the basis that “Israel was

required to intervene in an action in order to contest the subpoena and assert immunity on behalf

of the Israeli Official.” Id. at 2–3. In their reply, the intervenors’ counsel confirms for the Court

that he sent an email to Israel’s counsel “to discuss the merits of the instant motion” and that the



                                                  5
email exchange “made clear that the respective positions of the [i]ntervenors[] and Israel [were]

(and remain[]) irreconcilable.” Intervenors’ Reply at 1. Israel maintains that any email

communication should be discounted because the discussion must be “‘either in person or by

telephone’—not by email,” and that the failure to comply with the Local Rules mandates denial

of the intervenors’ motion. Israel’s Opp’n at 3.

       Israel’s reliance on the version of the Local Rule cited as support for its position is

misplaced, as an amended version of this Court’s Local Rules was adopted on October 1, 2013.

Changes to Local Rules, http://www.dcd.circdc.dcn/km-

portal/sites/portal/files/LCRammendOct13.pdf. The 2013 amended Local Rule 7(m) states:

       Before filing any nondispositive motion in a civil action, counsel shall discuss the
       anticipated motion with opposing counsel in a good faith effort to determine
       whether there is any opposition to the relief sought and, if there is, to narrow the
       areas of disagreement. . . . A party shall include in its motion a statement that the
       required discussion occurred, and a statement as to whether the motion is
       opposed.

Local Civ. R. 7(m) (2013) (emphasis added). The members of this Court eliminated the

somewhat archaic requirement that communication between counsel could only be conducted in

person or by telephonic communication—the Rule now implicitly allows for communication via

email. See id. Although it is true that the intervenors did not include the statements required by

Rule 7(m) in their motion “that the required discussion occurred, and . . . whether the motion is

opposed,” because the intervenors’ counsel did communicate with Israel’s counsel regarding the

matter and Israel had the opportunity to respond to the intervenors’ motion, and since Israel

relies on an incorrect version of the Local Rules, the Court will address the merits of the

intervenors’ motion.




                                                   6
   B. The Applicability and Application of Amended Rule 45

       Changes to Rule 45 of the Federal Rules of Civil Procedure went into effect on December

1, 2013, and were intended to apply “insofar as just and practicable, [to] all proceedings then

pending.” Supreme Court of the United States, Order Amending Federal Rules of Civil

Procedure ¶ 2 (Apr. 16, 2013). Prior to the 2013 amendments, Rule 45 required that subpoenas

be issued from the court where the deposition was to be taken, and the power to quash or modify

a subpoena was reserved to that court. See Fed. R. Civ. P. 45(a)(2)(B), (c)(3) (repealed Dec. 1,

2013). Rule 45 as amended now requires that subpoenas be issued from “the court where the

action is pending,” Fed. R. Civ. P. 45(a)(2), but still permits the “court for the district where

compliance is required [to] quash or modify the subpoena,” Fed. R. Civ. P. 45(d)(3). However,

now if “the court where compliance is required did not issue the subpoena, [that court] may

transfer a motion under [Rule 45] to the issuing court if the person subject to the subpoena

consents or if the court finds exceptional circumstances.” Fed. R. Civ. P. 45(f).

       Israel argues that “[a]pplying the new provision of Rule 45 retroactively to pending

subpoenas . . . invites serious personal jurisdiction issues,” Israel’s Opp’n at 18, “would not be

‘just and practicable’ in this miscellaneous case” because “[t]ransfer at this stage would

constitute a waste of litigation resources and would prejudice the State of Israel by requiring it to

relitigate these same issues in a new jurisdiction under new law,” id. at 16, and that “[w]hen the

subpoena was issued, the rules required this Court to be designated as the issuing court, whereas

the new rules define the ‘issuing court’ as the court where the underlying civil action is

pending,” id. at 17. Finally, Israel contends that because “[t]he Rules Committee overhauled the

operation of Rule 45 and plainly intended the amendments to operate holistically, . . . amended

Rule 45 is best read to apply prospectively under the circumstances here.” Id. at 19.



                                                  7
       Both Rule 86 of the Federal Rules of Civil Procedure and the law of this Circuit conflict

with Israel’s position. Rule 86(a)(2) directs this Court to apply amendments to the Rules “at the

time specified by the Supreme Court [and to apply them to] proceedings after that date in an

action then pending unless: (A) the Supreme Court specifies otherwise; or (B) the court

determines that applying them in a particular action would be infeasible or work an injustice.”

Fed. R. Civ. P. 86(a)(2) (emphasis added). In accordance with this command, this Circuit,

consistent with many other Circuits, has ruled that following changes in procedural law this

Court must “apply the law in effect at the time it renders its decision, unless doing so would

result in manifest injustice.” Moore v. Agency for Int’l Dev., 994 F.2d 874, 878–79 (D.C. Cir.

1993) (quoting Bradley v. Richmond Sch. Bd., 416 U.S. 696, 711 (1974)); see also Gersman v.

Grp. Health Ass’n, 975 F.2d 886, 898–99 (D.C. Cir. 1992) (holding that when substantive rights

do not change, but merely the remedy, that the law in effect at the time of the decision shall

apply); accord Michel v. United States, 519 F.3d 1267, 1271 (11th Cir. 2008) (applying the

December 2004 amended rules to a motion that was filed in May 2004); Skinner v. Total

Petroleum, Inc., 859 F.2d 1439, 1442 n.3 (10th Cir. 1988) (applying amended Rule 6 to a

pending motion to dismiss filed prior to the Rule’s amendment); Hoffman v. N.J. Fed’n of

Young Men’s & Young Women’s Hebrew Ass’ns, 106 F.2d 204, 207 (3d Cir. 1939) (holding

that it was immaterial that a motion was filed before the Rules were amended, and the amended

rules would apply when the court entered judgment).

       Because the Federal Rules and this Circuit require this Court to apply “the law in effect at

the time it renders its decision,” Moore, 994 F.2d at 879–80, and because as discussed next, the

Court finds that applying the amended Rule does not implicate personal jurisdiction nor will it

“work an injustice,” the Court must apply the amended Rule 45 to the dispute at hand.



                                                 8
Therefore, since the text of Rule 45(a)(2) now explicitly requires that “[a] subpoena must [be]

issue[d] from the court where the action is pending,” Fed. R. Civ. P. 45(a)(2), and because the

underlying litigation is not pending in this Court, this Court could not now have issued the

subpoena at issue in accordance with Rule 45(a)(2). Thus, since the subpoena explicitly

identifies the Southern District of New York as the court where the underlying action is pending,

see Israel’s Mem., Ex. A (Subpoena), pursuant to amended Rule 45 the Southern District of New

York must be considered the issuing court, Fed. R. Civ. P. 45(a)(2). However, because Mr.

Shaya was served in the District of Columbia and the subpoena commands his attendance here,

this Court is the court where compliance is required. Fed. R. Civ. P. 45(c)(1).

         1. Personal Jurisdiction Over Mr. Shaya

         As an initial matter, much of Israel’s concerns surrounding the retroactive application of

Rule 45 arise from a misunderstanding that both Israel and the intervenors have made regarding

the ramifications the transfer of Israel’s motion to the New York district court for resolution will

have on the physical location of Mr. Shaya’s deposition. 4 Both Israel and the intervenors have

incorrectly surmised that transferring the motion to quash would result in Mr. Shaya’s deposition

being physically conducted in New York. See Israel’s Opp’n at 19–21; Intervenors’ Mot. at 7–9.

Nothing in the amended Rule would indicate that this presupposition is appropriate or correct.

Pursuant to Rule 45, while the court where compliance is required may transfer subpoena-related


4
  This confusion is due in large part to the ambiguity of the relief the intervenors request in their pending motion.
The intervenors request that “if the motion to quash for any reason is not stricken,” that this Court “transfer[] this
proceeding . . . to Judge Shira Scheindlin of the United States District Court for the Southern District of New York,
where the underlying action is pending.” Intervenors’ Mot. at 2. The intervenors then outline how the deposition
would be conducted in Judge Scheindlin’s court. Based on the content of the intervenors’ motion, it is unclear
whether they are asking for both the motion to quash and the physical location of Mr. Shaya’s deposition to be
transferred to the Southern District of New York. For the reasons discussed, this Court is only able to transfer the
pending motion to quash and motion to strike to Judge Scheindlin for resolution. The principles of personal
jurisdiction as well as the text of Rule 45 preclude this Court from transferring the physical location of Mr. Shaya’s
deposition unless he consents to such transfer. See Fed. R. Civ. P. 45(c)(1), (f).


                                                           9
motions to the court where the underlying action is pending, the territorial limitations of Rule

45(c)(1) remain applicable. See Fed. R. Civ. P. 45(c)(1), (f). Therefore, should the Southern

District of New York deny the motion to quash, unless Mr. Shaya consents to being deposed in

New York, nothing in Rule 45 indicates that he would be deposed anywhere other than at 5301

Wisconsin Avenue, Suite 800, Washington, D.C., the address listed on the face of the subpoena.

        This clarification regarding the physical location where Mr. Shaya’s deposition will be

taken moots Israel’s arguments pertaining to the “serious personal jurisdiction issues” that it

believes are implicated by applying the amended rules. Israel’s Opp’n at 18. Israel maintains

that “because the subpoena here was served under the ‘old’ rule the New York court has no basis

to exercise personal jurisdiction over [Mr. Shaya] and could neither compel his deposition nor

hold him in contempt” because service was effected on Mr. Shaya in the District of Columbia. 5

Israel’s Opp’n at 18 (citing Fed. R. Civ. P. 45(b)(2)(A), (B) (repealed Dec. 1, 2013)). However

nothing in the amended Rule invokes questions concerning personal jurisdiction because, as has

always been the case, the district where the subpoena is served maintains jurisdiction over all

matters pertaining to subpoenas issued within its district. Fed. R. Civ. P. 45(d)(3)(A). The only

“jurisdictional” change occasioned by the amendment of Rule 45 is that now the district where

the subpoena was served, i.e. “the court where compliance is required,” explicitly has the option

of either resolving subpoena-related motions or transferring such motions to a more appropriate

court for resolution—the court where the underlying litigation is pending. Fed. R. Civ. P. 45(f).

5
  If, as the intervenors assert, “by agreement with Mr. Shaya, the location of the deposition was moved to New York,
and Judge Scheindlin agreed that the deposition could be conducted in her courtroom and that she herself would
preside over the deposition,” Intervenors’ Mot. at 4, then Mr. Shaya has already consented to the personal
jurisdiction of the Southern District of New York and this argument is therefore moot, cf. In re Sealed Case, 141
F.3d 337, 342 (D.C. Cir. 1980) (finding that if a nonparty “moves for a protective order in the court of the
underlying action [he] thereby submits to that court’s jurisdiction,” and the jurisdictional problems resulting from
transferring subpoena-related motions are cured); but see Israel’s Opp’n at 19 (“[Mr. Shaya’s] purported silence
with respect to conducting a deposition in New York does not equate to consent to transferring the present motion to
quash; they are separate considerations.”) (emphasis in original).


                                                        10
Where perhaps once “Congress [through] the Rules [was] clearly . . . ready to sacrifice some

efficiency in return for territorial protection for nonparties,” In re Sealed Case, 141 F.3d 337, 341

(D.C. Cir. 1998), it appears now that Congress, through the Rules, has elevated the importance of

efficiency and case management, Fed. R. Civ. P. 45(a)(2), (b)(2) (eliminating the intricate

requirements delineating which court may issue a subpoena and instead mandating that

subpoenas be issued by the court where the action is pending and subsequently served anywhere

in the United States).

         As noted earlier, the “place specified for the deposition” is 5301 Wisconsin Avenue,

Suite 800, Washington, D.C., the address listed on the subpoena. See Israel’s Mem., Ex. A

(Subpoena). Despite the Intervenors’ assertions and requests to the contrary, transferring the

motion to quash to the Southern District of New York has no impact on where the deposition of

Mr. Shaya will physically occur. Additionally, Israel incorrectly argues that should this Court

apply the amended Rule 45 and transfer its motion to quash, such a decision would render the

Southern District of New York unable to “compel [Mr. Shaya’s] deposition [or] hold him in

contempt.” Israel’s Opp’n at 18. In fact, amended Rule 45(g) specifically allows for such a

scenario. See Fed. R. Civ. P. 45(g) (“The court for the district where compliance is required—

and also, after a motion is transferred, the issuing court—may hold in contempt a person who,

having been served, fails without adequate excuse to obey the subpoena or an order related to

it.”).

         2. Retroactive Application of Rule 45

         Israel’s only argument as support for its position that “manifest injustice” will result from

the retroactive application of amended Rule 45 is the cost it will incur from the Court “requiring

it to relitigate these same issues in a new jurisdiction under new law.” Israel’s Opp’n at 16.



                                                  11
Israel maintains that requiring further research would constitute “a waste of litigation resources,”

resulting in prejudice. Id. However, even applying the Southern District of New York’s own

Circuit authority, to the extent that authority conflicts with the law of this Circuit, Israel’s

argument fails because the cost of litigation alone does not amount to an unfair prejudice. Cf.

Randall v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 110 F.R.D. 342, 345 (D.D.C. 1986)

(“mere cost of litigation” in the Rule 60(b) motion context “does not constitute unfair

prejudice”); EEOC v. Md. Cup Corp., 785 F.2d 471, 479 (4th Cir. 1986) (finding that the

additional cost of $75,000 to comply with a subpoena was not unduly burdensome absent a

showing that “gathering the information would threaten its normal business operations”); EEOC

v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1040 (10th Cir. 1993) (dismissing unduly

burdensome argument based on inconvenience and “some expense” absent a showing that

compliance with a subpoena would “disrupt and seriously hinder normal operations”).

        It is only the rare and extreme circumstance in which litigation costs result in prejudice—

this is not such a circumstance. See e.g., Freund v. Fleetwood Enters., Inc., 956 F.2d 354, 363

(1st Cir. 1992) (ruling that a change to a procedural rule did not warrant remanding a case for a

new trial because “[t]here is no reason to think that a second trial would produce a different

result” and that the opposing party should not have “to endure the expense and inconvenience”

that would result from relitigating the case when the outcome would not produce a different

result). Transferring a motion to the jurisdiction where the underlying litigation is pending that

will require few, if any, modifications of the written submissions, does not rise to the level of

unfair prejudice. Therefore, the cost that may be incurred to prosecute its motion in the Southern

District of New York rather than in the District of Columbia is de minimis.




                                                   12
    C. The District of Columbia Circuit’s Rule 45 Analysis

        Israel asserts that the intervenors’ motion to transfer fails because “the [District of

Columbia] Circuit has held that motions to quash cannot be transferred under any

circumstances.” Israel’s Opp’n at 15 (citing In re Sealed Case, 141 F.3d 337 (D.C. Cir. 1998)).

However, applying the analysis mandated by In re Sealed Case to Rule 45 in its amended state

yields an outcome opposite to what was permissible in 1998. This is because In re Sealed Case

was predicated on a textual reading of Rule 45 as drafted at that time, resulting in a finding that

the rule “offer[ed] no authorization to transfer a motion to quash [a subpoena] and seems at least

implicitly to forbid it” because “nothing in the Rules even hints that any other court may be

given the power to quash or enforce [another court’s subpoenas].” 141 F.3d at 341. In reaching

this conclusion, the Circuit instructed district judges that when determining the legality of

transferring subpoena-related motions, “the place to start . . . is the text of Rule 45.” Id. at 340–

41. Applying that directive, the pertinent provisions of Rule 45 must be construed to now read:

        When the court where compliance is required [is not the court where the
        underlying action is pending, the court where compliance is sought] . . . may
        transfer a [subpoena-related] motion under this rule to the issuing court if the
        person subject to the subpoena consents or if the court finds exceptional
        circumstances . . . . [Both t]he court for the district where compliance is
        required—and also, after a motion is transferred, the [court where the underlying
        action is pending]—may hold in contempt a person who, having been served, fails
        without adequate excuse to obey the subpoena or an order related to it.

Fed. R. Civ. P. 45(f), (g).

        Based on the analysis required by In re Sealed Case, the text of Rule 45 not only “hints

that [another] court may be given the power to quash or enforce [a subpoena],” In re Sealed

Case, 141 F.3d at 341, it explicitly permits it in circumstances where “the person subject to the

subpoena consents or if the court finds exceptional circumstances,” see Fed. R. Civ. P. 45(f); see

also In re Sealed Case, 141 F.3d at 343 (Henderson, J. concurring) (“I stop short, however, of


                                                  13
deciding, as does the majority, that a district court lacks authority to order a transfer. Assuming

such authority exists, it should be reserved for the extraordinary, complex case in which the

transferee court is plainly better situated to resolve the discovery dispute.”). Because the text of

amended Rule 45 specifically allows for transfer, and as discussed next, exceptional

circumstances exist that warrant transfer, Israel’s motion to quash and all related filings,

including the intervenors’ motion to strike, will be transferred to the Southern District of New

York for resolution.

       1. Exceptional Circumstances

       As previously indicated, although this Court is not entirely convinced that Mr. Shaya has

not already agreed to be deposed in New York given the extensive preparations and security

measures taken by Judge Scheindlin, the Court finds that despite Israel’s assertions to the

contrary, see Israel’s Opp’n at 19–21, exceptional circumstances do exist in this case. Due to the

highly complex and intricate nature of the underlying litigation, Judge Scheindlin is in a better

position to rule on the intervenors’ motion to quash or modify the subpoena due to her familiarity

with the full scope of issues involved as well as any implications the resolution of the motion

will have on the underlying litigation. Any ruling by this Court will inevitably disrupt Judge

Scheindlin’s management of the two highly complex actions currently pending in her court, as

well as impact four other separate but related actions pending in the New York Supreme Court,

about which this court has even less familiarity. Intervenors’ Mot. at 3 n.1 (listing six cases

pending in New York state court and the Southern District of New York, two of which are being

litigated in tandem before Judge Scheindlin, and all apparently subject, to some degree, to two

coordinated discovery orders); see also Memorandum in Support of Proposed Intervenors’

Motion for Intervention at 1–2, No. 13-mc-1248 (RBW) (D.D.C. Nov. 4, 2013), ECF No. 1.



                                                 14
         Other courts have found exceptional circumstances warranting transferring subpoena-

related motions to quash when transferring the matter is in “the interests of judicial economy and

avoiding inconsistent results.” FTC v. A+ Fin. Ctr., LLC, No. 1:13-mc-50, 2013 WL 6388539,

at *3 (S.D. Ohio Dec. 6, 2013). The advisory committee notes to Rule 45(f) embrace these

factors, stating that “transfer may be warranted in order to avoid disrupting the issuing court’s

management of the underlying litigation, as when that court has already ruled on issues presented

by the motion or the same issues are likely to arise in discovery in many districts.” Fed. R. Civ.

P. 45(f) advisory committee’s note (2013). Both circumstances are applicable here.

Accordingly, the Court finds that there are exceptional circumstances warranting the transfer of

the motions pending before this Court to the Southern District of New York.

              a. Consistency in Rulings

         Israel’s counsel represents that there are other high-level Israeli non-parties who may be

served with subpoenas. See Intervenors’ Supp. Mem., Ex. A (Bellinger Letter) at 1 (indicating

that the intervenors “intend to take an oral deposition of Major General Yaacov Amidror” and “a

deposition of Ambassador Vilnai”); but see id. (indicating that there has not yet been “[a] valid

and properly served subpoena . . . to secure the testimony of” the other Israeli officials). In the

event those subpoenas are served in any district other than the Southern District of New York,

this Court’s resolution of Israel’s motion to quash as related to its assertion of the foreign state

secrets privilege might differ from another court’s resolution of such a motion, further impacting

the litigation pending before Judge Scheindlin. 6 This potential for inconsistent rulings should be


6
  In this Court’s opinion, the interest of obtaining consistent rulings on the issues presented in Israel’s motion to
quash would be best served by one judicial officer—Judge Scheindlin—resolving any motion raising such issues.
However, if subpoenas are served in other districts, it is possible that another court may disagree with this Court’s
assessment and instead may be inclined to reach the merits of a similar motion to quash. While this Court cannot
require that other judges accept its position on this issue, hopefully this Court’s resolution of the motion to quash
will persuade other judges to transfer any other similar motions to Judge Scheindlin to avoid inconsistent rulings. In
                                                                                                           (continued . . . )

                                                             15
avoided and weighs in favor of a single judicial officer deciding all of these disputes. And

transferring the motion to quash pending before this Court advances the objective of avoiding

inconsistent rulings. Moreover, even if other former or current Israeli officials have not been

served with subpoenas, the resolution of the Shaya subpoena alone potentially impacts multiple

cases, and the Court therefore disagrees with Israel’s characterization of the issue as “unique to

this ancillary proceeding.” Israel’s Opp’n at 20.

             b. Judge Scheindlin’s Prior Involvement in the Underlying Litigation

         Contrary to Israel’s view that Judge Scheindlin “has not taken a position on any of the

[state secrets privilege] issues raised in the motion to quash itself,” Israel’s Opp’n at 21, Judge

Scheindlin has in fact taken an interest and active role in resolving any potential state secrets

claim. For example, on September 27, 2013, Judge Scheindlin asked Israel’s Department of

International Affairs to “offer a timeframe for the Israeli government’s response to [the Southern

District of New York’s] July 2 inquiry regarding Mr. Shaya’s ability to participate in a

deposition.” Judge Scheindlin’s Letter at 1, Wultz v. Bank of China, Ltd., No. 11-cv-1266

(SAS) (S.D.N.Y. Sept. 27, 2013), ECF No. 337. Further, Judge Scheindlin has expressed a

desire to personally supervise the deposition of Mr. Shaya in her courtroom and set specific

conditions to protect the privilege of any information that Mr. Shaya is asked to divulge. 7 Order

at 1–4, Wultz v. Bank of China, Ltd., No. 11-cv-1266 (SAS) (S.D.N.Y. Nov. 15, 2013), ECF No.



( . . . continued)
any event, even if other courts faced with a similar question opt to reach the merits of any such motions, this Court
finds that Judge Scheindlin, as the judge presiding over the underlying case, should have the first say on the matter,
and her guidance will hopefully promote consistency.
7
  Pursuant to Rule 45 this would be permissible only if Mr. Shaya consents to being deposed in New York and
thereby submits himself to the Southern District of New York’s jurisdiction. As the Court previously indicated,
however, Mr. Shaya has likely already consented to this, and thus, has already consented to that court exercising
personal jurisdiction over him.



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394. Therefore, this Court finds that Judge Scheindlin has been intimately involved in Israel’s

asserted state secrets claim, and accordingly is better informed to resolve this issue.

                                              III. CONCLUSION

           For the foregoing reasons, the intervenors’ motion will be granted in part and denied in

part. Accordingly, the Court denies with prejudice the Intervenors’ request to transfer the

physical location of Uzi Shaya’s deposition to the Southern District of New York, to the extent

that such relief has, in fact, been requested by the intervenors, and grants the component of the

intervenors’ motion that seeks to transfer Israel’s motion to quash to the Southern District of

New York for resolution. Therefore, The State of Israel’s Motion to Quash and all applicable

filings, including the intervenors’ motion to strike Israel’s motion to quash, are transferred to the

United States District Court for the Southern District of New York. The Clerk of this Court is

directed to terminate all remaining deadlines this Court has set and transfer this case forthwith.

           SO ORDERED this 30th day of May, 2014. 8

                                                                      REGGIE B. WALTON
                                                                      United States District Judge




8
    An order consistent with this memorandum opinion shall be issued contemporaneously.


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